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Legal Issues in the Niqab Case
Sultaana Lakiana Myke Freeman v. State of Florida
During the 1960's and 1970's, a series of decisions by the U.S. Supreme Court supported individuals' religious freedom by limiting the authority of government to regulate religious practices unless the government can prove it has a compelling interest in regulating religion and that such regulation is the least restrictive means possible. Two important examples were Sherbert v. Verner in 1963 (state cannot deny unemployment benefits to claimant who refused to work on Saturday because of her religious beliefs) and Wisconsin v. Yoder in 1972 (state cannot compel Amish children to attend high school were parents sincerely believed that high school attendance was contrary to their religion). But in a 1990 case called Employment Division v. Smith, the U.S. Supreme court rejected a claim for unemployment benefits by two Native Americans who had been fired from their state jobs for the ritual use of peyote in tribal religious ceremonies. In Smith, the U.S. Supreme Court rejected the traditional tests for evaluating infringements of religious liberty and effectively read the Free Exercise Clause out of the First Amendment as long as the infringement applied generally to the public - a law of general applicability - and did not single anyone out. The free exercise clause prohibits the government, in most instances, from interfering with how a person practices his/her religion.
In response to the Supreme Court's shift in judgment, a broad coalition of religious and civil liberties organizations, including the American Civil Liberties Union and the Traditional Values Coalition, pushed for federal legislation to restore the level of legal protection for religious expression that was previously enforced by the courts under the First Amendment. Thus came the federal Religious Freedom Restoration Act, which was approved by Congress and signed by President Clinton. The law, however, was found to be unconstitutional as applied to the states by the U.S. Supreme Court in 1997.
The RFRA has since been reborn at the state level, where a number of state laws patterned after the federal legislation have been enacted. Since 1997, religious freedom restoration acts have been enacted in Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, New Mexico, Rhode Island, South Carolina, and Texas. The purpose behind these state laws was to apply First Amendment law as it existed before the Supreme Court's decision in Employment Division v. Smith.
Approved by the Florida legislature in 1998, the Florida Religious Freedom Restoration Act (RFRA) requires state government officials to demonstrate a "compelling state interest" before taking any actions that might "burden " the free exercise of religion by faith groups or individuals. That simply means the government must have a "compelling" societal reason to limit religious freedom and it must do so in the least intrusive way possible. The state law was intended to protect people's First Amendment right to worship freely without government interference and applies to any governmental action in Florida.
The legal issue in Freeman's case is whether the restriction imposed by the Florida Department of Highway Safety and Motor Vehicles (DHSMV) violates her constitutional right to exercise a tenant of her religion. The Department wants to force Ms. Freeman to remove an article of clothing for a government photograph -- an act that goes against her Islamic faith. Ms. Freeman, like some Muslim women in other parts of the world, has chosen to wear the face-covering Niqab rather than the more modern Hijab, which only covers the head. Although not all Muslim women wear the Niqab, it is still an authentic part of Islam and central to the spiritual aspect of dress for some Muslim women. Ms. Freeman wears the Niqab as a sign of piety.
As one devout Muslim woman who wears the Niqab said: "For me, the way I cover-up is a matter of conscience, guided Insh'Allah by much reading, study and by my own self image. I spent long enough as an adult in the modern world before finally accepting the need for decent concealment to know that I can affect men because of the physical blessings that Almighty Allah has granted me. As I would feel much guilt were I even to risk leading a man from the One True Path, I prefer to hide away my physical aspect and, Insh'Allah, to allow my mind and my actions to be the elements upon which I am judged as a Muslimah and as a human-being."
In court documents, the ACLU argues that by trying to force her to remove the Niqab, the Department of Highway Safety and Motor Vehicles (DHSMV) has violated Ms. Freeman's right to worship freely.
The Court of Appeals for the Tenth Circuit addressed the issue of religious freedom in the case of William P. Dennis v. Alan Charnes, arising in Colorado. In this case, Mr. Dennis joined a religious group that prohibited its members from allowing photographs to be taken of them. According to members of that religious group, the Second Commandment mandated that "God had foreboded the making of, and has ordered the destruction of, graven images and likenesses." Mr. Dennis was denied his driver's license because he refused to be photographed. The court noted that the state must show a "compelling interest" in having photographs on drivers' licenses and that no less restrictive alternative is available. Lawyers for Mr. Dennis were successful in arguing that the state was violating his religious freedom by implementing a policy that dictates how he must practice his religion.
In the case of Frances J. Quaring v. Harry Peterson, the plaintiff also had religious objections to being photographed for a driver's license. The court ruled in favor of Ms. Quaring and struck down a Nebraska policy mandating that applicants submit a color photograph in order to obtain a driver's license. The court held that the policy "unconstitutionally burdened the applicant's free exercise of her sincerely held religious beliefs." She was therefore allowed to receive her license without the photograph as a vindication of her First Amendment right to free exercise of religion. Her belief was also grounded in a reading of the Second Commandment.
These cases involve governmental actions that restrict the religious freedoms of individuals by compelling them to take photographs in direct violation of their religious beliefs. In the two cases mentioned above, the court affirmed the plaintiffs' right not to take a photo because doing so would be in violation of their fundamental Christian religious beliefs. Ms. Freeman, however, does not object to being photographed. Instead, she is fighting for her right to take the picture wearing the Niqab or veil, which is how she always looks when appearing in public.
At issue here is whether the state has a "compelling interest" in photographing Ms. Freeman's entire, uncovered face on her license. The purpose of a driver's license is for the state to certify that individuals are capable drivers and that they're eligible to drive on the roads of our state. Arguably, the state can certify a person's ability to follow driving rules without a picture. Civil libertarians and others concerned about privacy also argue that a driver's license should NOT be converted into a national identification card. And that by implementing this new requirement, the state is attempting to convert the driver's license into an ID card.
There is no question here as to Ms. Freeman's identity - she established her identity to the satisfaction of the state by presenting appropriate documents when she obtained her driver's license.
